Com. v. King, J.

J-A21019-21

2021 PA Super 243

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
JEROME KING : No. 1812 EDA 2020

Appeal from the Order Entered August 25, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0706191-2005

COMMONWEALTH OF PENNSYLVANIA : IN THE SUPERIOR COURT OF
: PENNSYLVANIA
Appellant :
:
:
v. :
:
:
ESHEEM HASKINS : No. 1813 EDA 2020

Appeal from the Order Entered August 25, 2020
In the Court of Common Pleas of Philadelphia County Criminal Division at
No(s): CP-51-CR-0706192-2005

BEFORE: KUNSELMAN, J., NICHOLS, J., and KING, J.

OPINION BY NICHOLS, J.: FILED DECEMBER 14, 2021

In these consolidated cases,1 the Commonwealth appeals from the

August 25, 2020 order granting the motion to dismiss and bar retrial filed by

Jerome King and Esheem Haskins (collectively Appellees). The

Commonwealth asserts that although the prosecutor in this matter committed

an error prior to trial, the remedy should be a new trial rather than dismissal
____________________________________________

1 In an order filed on August 6, 2021, we consolidated these appeals sua
sponte.
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of the charges based on double jeopardy. After review, we reverse the order

dismissing the charges against Appellees based on double jeopardy and

remand for a new trial.

The trial court summarized the relevant facts and procedural history

underlying the instant appeals as follows:

On February 2, 2005, Nathaniel Giles (Giles) was shot to death
outside of a Chinese restaurant in Philadelphia, PA. At the time,
Giles was cooperating with federal authorities in the murder
investigation of ten-year[-]old Faheem Thomas-Childs (Thomas-
Childs). Giles told federal authorities that the gun used in
Thomas-Childs’ murder was purchased from Jerome King (King).
Two civilians, minors at the time, witnessed Giles’ murder outside
of the restaurant.

The eyewitnesses were inside of the restaurant waiting for their
food order when they saw Giles engaged in a conversation with
Khalief Alston (Alston) just outside the restaurant. While Giles
and Alston talked, a car stopped for an unusually long time at the
stop sign by the restaurant then drove away. A short time later,
two men approached Giles from the direction the car had driven
and one of the men [put] a gun to the back of Giles’ head and
shot him. The shooter stood over [Giles’] body and shot Giles
again before the two men fled.

The eyewitnesses consistently identified King as the shooter and
Esheem Haskins (Haskins) as the accomplice in photo arrays
during the investigation and at trial. During the June 2006 trial,
some of the eyewitnesses’ testimony was inconsistent with their
police statements and inconsistent with each other. One witness
did not mention an accomplice in the police statement and
described the shooter as six feet to six feet and three inches tall,
while King is only five feet and seven inches tall. This witness
denied providing detectives with the shooter’s height.

The other witness testified to watching Haskins hand a gun to King
as they approached Giles but later changed her testimony denying
she witnessed that interaction. This witness also changed her
testimony that she heard Haskins yell “Shoot him. Shoot him,” to

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King, instead claiming that she could not hear what was being said
outside of the restaurant.

On March 11, 2005, Khalief Alston and Ernest Cannon (Cannon)
were arrested for an unrelated homicide. The same day, Alston
gave a statement (March 11 statement) to police regarding the
unrelated murder, implicating Cannon as the murderer in that
matter. Cannon also gave a statement that same day regarding
the unrelated murder, . . . implicating Alston as the murderer in
that matter. In the March 11 statement, Alston also identified
Cannon, not King or Haskins, as Giles’ killer claiming Cannon killed
Giles for being a police informant.

On March 23, 2005, three letters were recovered from 2849 N.
Taney Street (Alston’s address) pursuant to a search warrant
executed in connection to the unrelated murder. One of the
letters recovered was handwritten by Alston (Alston letter) to an
unidentified person. Part of the Alston letter read, “Ezel (i.e.
Ernest Cannon) rocked Nate (i.e. Nathaniel Giles) for snitching on
[L]em (i.e. Jerome King) too.” This letter predated Alston’s police
statement because Alston was in custody when . . . his home was
searched and the letters were discovered.

On May 6, 2005, King and Haskins were arrested for the murder
of Nathaniel Giles. At trial, the Commonwealth argued that King
and Haskins were motivated to kill Giles[] because he had
implicated King as the supplier of the firearm used in the Thomas-
Childs murder.

On September 1, 2005, Craig Lindsey (Lindsey) was arrested in
an unrelated federal drug case. Initially, Lindsey was incarcerated
in prison on State Road, Philadelphia, PA. In March 2006, while
incarcerated at State Road, Lindsey came into contact with King.
On April 23, 2006, based on conversations Lindsey allegedly had
with King, Lindsey wrote a letter to the District Attorney’s Office
and was brought down to the Homicide Division of the Philadelphia
Police Department where he gave a statement. Lindsey claimed
that King told him that the gun used in the murder of Thomas-
Childs was the one he gave to the shooter. When questioned at
[the] King/Haskins trial about what expectations he had in
providing this testimony with respect to his open federal drug
case, Lindsey replied that he “ain’t really know how it was going
to affect it.”

At the King/Haskins trial, Alston testified as a defense witness
claiming that on the evening of Giles’ murder he was walking with

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Cannon when they spotted Giles. Cannon, believing that Giles
was a police informant, crossed the street and shot Giles in the
back of the head before fleeing. On cross, it was revealed that
Alston, Haskins, and King were part of the same gang and that
Alston was loyal to them. Additionally, it was revealed that during
the police investigation into an unrelated murder, Alston learned
that Cannon had implicat[ed] him as the murderer in that
unrelated investigation. The Commonwealth argued that Alston’s
allegation that Cannon [murdered Giles] was a recent fabrication
[that] Alston created as retaliation for Cannon implicating him in
the unrelated murder.

On June 23, 2006, King was convicted by a jury of murder of the
first degree, criminal conspiracy, and violation of the Uniform
Firearms Act, while Haskins was convicted of murder and
conspiracy but was found not guilty of the violation of the Uniform
Firearms Act. King was sentenced to life imprisonment on the
murder charge and a consecutive twenty to forty years for the
conspiracy charge with a concurrent five[-]year sentence for the
firearms charge. Haskins was sentenced to life imprisonment on
the murder charge with a consecutive twenty to forty years for
the conspiracy charge.

Trial Ct. Op., 11/12/20, at 1-4 (record citations omitted).2

Both King and Haskins filed post-sentence motions, and both were

denied by operation of law. King and Haskins each filed a direct appeal. This

Court affirmed Haskins’ judgment of sentence on March 12, 2008.

Commonwealth v. Haskins, 953 A.2d 599, 3303 EDA 2006 (Pa. Super. filed

Mar. 12, 2008) (unpublished mem.) (Haskins I), appeal denied, 956 A.2d

432 (Pa. 2008). We affirmed King’s judgment of sentence in a published

opinion filed on October 17, 2008. Commonwealth v. King, 959 A.2d 405

____________________________________________

2 For ease of discussion, we refer to a single trial court opinion. Although the
trial court drafted separate Rule 1925(a) opinions in King’s and Haskins’ cases,
the opinions are largely the same, and the portions quoted here are identical.

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(Pa. Super. 2008) (King I). King did not petition for allowance of appeal in

our Supreme Court.

Appellees filed separate Post-Conviction Relief Act3 (PCRA) petitions,

and on June 29, 2011, Appellees filed a joint memorandum of law alleging the

Commonwealth committed a Brady4 violation with respect to the Alston letter.

On July 5, 2011, the PCRA court agreed with Appellees that the

Commonwealth committed a Brady violation and granted Appellees a new

trial.

On July 22, 2011, the Commonwealth appealed the July 5, 2011 order

granting Appellees a new trial. After review, in a consolidated appeal, our

Court reversed the PCRA court’s order and returned the matters to the PCRA

court. Commonwealth v. Haskins, 60 A.3d 538 (Pa. Super. 2012)

(Haskins II). Appellees petitioned for allowance of appeal to our Supreme

Court, and those petitions were denied on October 29, 2013.

Commonwealth v. Haskins, 78 A.3d 1090, 5 EAL 2013 (Pa. 2013);

____________________________________________

3 42 Pa.C.S. §§ 9541-9546.

4 See Brady v. Maryland, 373 U.S. 83, 87 (1963) (stating, “the suppression
by the prosecution of evidence favorable to an accused upon request violates
due process where the evidence is material either to guilt or to punishment,
irrespective of the good faith or bad faith of the prosecution”). To establish a
Brady violation, a criminal defendant must establish: “(1) the evidence at
issue was favorable to the accused, either because it is exculpatory or because
it impeaches; (2) the evidence was suppressed by the prosecution, either
willfully or inadvertently; and (3) prejudice ensued.” Commonwealth v.
Roney, 79 A.3d 595, 607 (Pa. 2013) (citation omitted).

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Commonwealth v. King, 78 A.3d 1090, 8 EAL 2013 (Pa. 2013). On remand,

the PCRA court subsequently denied Appellees’ PCRA petitions.

On November 26, 2013, Haskins filed a petition for writ of habeas corpus

in federal district court, and following review, the district court denied Haskins’

petition. See Haskins v. Folino, NO. 13-6901, 2017 WL 1397261 (E.D.Pa.

Apr. 19, 2017). Haskins filed a timely appeal to the United States Court of

Appeals for the Third Circuit.

The trial court summarized the subsequent procedural history as

follows:

After over a decade of appeals, on November 8, 2018, the United
States Court of Appeals for the Third Circuit decided Haskins’
habeas petition and granted him a new trial after finding that the
Pennsylvania [Superior Court in Haskins II] misapplied the
Brady materiality standard, [and held] that suppressing the
Alston letter was a Brady violation.[5] On July 29, 2019, the PCRA
court granted King a new trial based on the Third Circuit decision
of Haskins’ habeas petition.

As a result of the Third Circuit decision, King and Haskins both
filed a Motion to Dismiss Based on the Double Jeopardy Clauses
of the Pennsylvania and the United States Constitutions. In
addition to claiming the prosecution should be barred based on
the Alston letter Brady violation, King raised an additional Brady
violation claim asserting that the Commonwealth failed to disclose
Lindsey’s possible status as a federal confidential informant at the
time of Haskins’ and King’s trial.

In his Motion to Dismiss, King cited the opinion by the Honorable
Paul S. Diamond in U.S. v. Wilcox, NO. 06-0445[, 2007 WL
2461820] (E.D.PA. Aug. 28, 2007), granting movant’s motion to
suppress in part and denying in part. This opinion revealed that
after Lindsey’s September 1, 2005, drug arrest he was recruited
____________________________________________

5See Haskins v. Superintendent Greene SCI, 755 Fed.Appx. 184 (3d Cir.
2018) (Haskins III).

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as a confidential informant in hopes of mitigating “his punishment
by helping police,” Wilcox, at page 6, and that police sought to
protect his identity as a confidential informant to “ensure Lindsey’s
continue[d] assistance with other investigations.” Id. at page 15.

Assistant District Attorney Jason Bologna was assigned to try the
King/Haskins trial. ADA Bologna testified at the August 19, 2020,
Double Jeopardy motion hearing that he understood the Alston
letter to mean that someone other than King or Haskins shot and
killed Giles because Giles was cooperating with police in the
Thomas-Childs investigation. ADA Bologna testified at the Double
Jeopardy motion hearing, that he understood that this additional
statement was significant but made a deliberate decision not to
turn it over to the defense on the assumption that this handwritten
note was merely cumulative of the statement which Alston had
given to the police on March 11, 2005. The Commonwealth made
no argument as to the defense claim that information on Lindsey’s
cooperation with local and federal law enforcement agencies was
withheld from the defense during the trial.

On August 25, 2020, this court granted [Appellees’] Motion to
Dismiss Based on the Double Jeopardy Clauses of the
Pennsylvania and the United States Constitutions. On September
1, 2020, the Commonwealth filed a Motion to Reconsider the
granting of the double jeopardy motions and a request to the court
to file a Findings of Fact and Conclusions of Law. The Findings of
Fact and Conclusions of Law were filed on September 24, 2020,
holding that a retrial was barred by the double jeopardy rule and
granted the defendants’ motions. On October 20, 2020, the
Commonwealth [appealed].

Trial Ct. Op., 11/12/20, at 5-6. Both the trial court and the Commonwealth

complied with Pa.R.A.P. 1925.

On appeal, the Commonwealth raises the following issues:

Did the [trial] court err by precluding [Appellees’] retrial for the
murder of a federal informant on double jeopardy grounds where
its finding of prosecutorial overreaching was factually erroneous;
and where it erred as a matter of law by failing to consider, as
[Commonwealth v. Johnson, 231 A.3d 807 (Pa. 2020)]
requires, society’s strong interest in bringing the guilty to justice,
and whether retrial threatened the conviction of innocent people?

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Commonwealth’s Brief at 6 (unpaginated).

Our standard and scope of review in this case are as follows:

An appeal grounded in double jeopardy raises a question of
constitutional law. This Court’s scope of review in making a
determination on a question of law is, as always, plenary. As with
all questions of law, the appellate standard of review is de novo.
To the extent that the factual findings of the trial court impact its
double jeopardy ruling, we apply a more deferential standard of
review to those findings.

Where issues of credibility and weight of the evidence are
concerned, it is not the function of the appellate court to substitute
its judgment based on a cold record for that of the trial court. The
weight to be accorded conflicting evidence is exclusively for the
fact finder, whose findings will not be disturbed on appeal if they
are supported by the record.

Commonwealth v. Sanchez, --- A.3d ----, ---, 2021 PA Super 197, 2021

WL 4515356, at *5 (Pa. Super. filed Oct. 4, 2021) (citations omitted and some

formatting altered). We must also consider the following:

The Double Jeopardy Clauses of the Fifth Amendment to the
United States Constitution and Article 1, § 10 of the Pennsylvania
Constitution protect a defendant from repeated criminal
prosecutions for the same offense. Ordinarily, the law permits
retrial when the defendant successfully moves for mistrial. If,
however, the prosecution engages in certain forms of intentional
misconduct, the Double Jeopardy Clause bars retrial. Article I, §
10, which our Supreme Court has construed more broadly than its
federal counterpart, bars retrial not only when prosecutorial
misconduct is intended to provoke the defendant into moving for
a mistrial, but also when the conduct of the prosecutor is
intentionally undertaken to prejudice the defendant to the point
of the denial of a fair trial. An error by a prosecutor does not
deprive the defendant of a fair trial. However, where the
prosecutor’s conduct changes from mere error to intentionally
subverting the court process, then a fair trial is denied.

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Commonwealth v. Byrd, 209 A.3d 351, 353 (Pa. Super. 2019) (citation

omitted). “Dismissal is an appropriate remedy in such a case because a

mistrial would be an inadequate remedy for systematic intentional

prosecutorial misconduct.” Id. (citation omitted and formatting altered). “By

and large, most forms of undue prejudice caused by inadvertent prosecutorial

error or misconduct can be remedied in individual cases by retrial. Intentional

prosecutorial misconduct, on the other hand, raises systematic concerns

beyond a specific individual’s right to a fair trial that are left unaddressed by

retrial.” Id. (citation omitted). “[A] fair trial is not simply a lofty goal, it is a

constitutional mandate, . . . and where that constitutional mandate is ignored

by the Commonwealth, we cannot simply turn a blind eye and give the

Commonwealth another opportunity.” Id. (citation omitted).

In its opinion, the trial court addressed the Commonwealth’s claim of

error as follows:

At the August 19, 2020, double jeopardy motion hearing, ADA
Bologna testified that he knew the Alston letter to mean that
neither King [n]or Haskins were involved in Giles’ murder. He
understood that the letter was significant but made the conscious
decisions not to turn over the letter to [Appellees]. At trial, when
Alston testified that Cannon was the one who killed Giles, the
Commonwealth attacked his motiv[e] to testify by claiming Alston
only recently fabricated this story because Cannon implicated him
in an unrelated homicide. Had the Commonwealth shared the
Alston letter with [Appellees], [counsel for Appellees] could have
shown that the letter predated Alston’s revelation and that his
testimony was not recently fabricated in retaliation to Cannon
implicating him in an unrelated homicide. Therefore, this court
found that the Commonwealth acted recklessly when it
deliberately withheld the crucial piece of evidence (the Alston
letter) which impaired [Appellees’] ability to have a fair trial in this

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matter. Because they did not have the benefit of this evidence
which was consciously and intentionally withheld by the
Commonwealth, they were unable to put forth the defense of prior
consistent statement to the jury. If [Appellees] had this evidence
it would have been able to offer for the consideration of the jury
that on two (2) prior occasions, Alston had identified some other
person, other than King or Haskins, as the killer of Giles (i.e. the
March 11 statement and the Alston letter).

The [trial c]ourt also found that the Commonwealth withheld
evidence that Lindsey was a confidential informant arising from
his arrest on September 1, 2005, and was supplying police with
information in other investigation in hopes of mitigating his own
punishment, which may have impacted his desire to be a truthful
witness at this trial.

United States law requires the prosecution to turn over favorable
evidence to the defendant when it is material to either the guilt or
sentencing phase. Brady v. Maryland, 373 U.S. 83, 87 (1963).
This “includes evidence that would affect the credibility of a
witness.” Haskins v. Superintendent Greene SCI, 755
Fed.Appx. 184, [188] (3d Cir. 2018) (citing Wilson v. Beard, 589
F.3d 651, 659, 666-67 (3d Cir. 2009)). The prosecution must
disclose information it actually knows “and all information in the
possession of the prosecutor’s office, the police, and others acting
on behalf of the prosecution.” Id. . . .

Lindsey was arrested in September 2005, and he began
cooperating with local and federal authorities in criminal
investigations in hopes of mitigating his own sentence.[fn3] At the
time of the King/Haskins trial, Lindsey was incarcerated in a
federal prison with an open federal case. Looking at the timeline
of Lindsey’s arrest and testimony at the King/Haskins trial, along
with the fact that Lindsey’s role as a confidential informant was
known to Philadelphia Police, indicate that his role as an informant
was withheld by the Commonwealth in violation of prong two of
Brady. The Commonwealth’s trial theory of motive was that King
and Haskins murdered Giles because Giles was cooperating with
federal authorities in the investigation of the murder of ten-year
old Faheem Thomas-Childs. Lindsey wrote a letter to the DA after
allegedly talking to King while they were both incarcerated in the
Philadelphia prison system. Lindsey learned that King supplied
the gun that was used to kill Thomas-Childs. At trial, Lindsey
testified that King told him that the gun used in the Thomas-Childs
murder was King’s. Lindsey’s testimony helped establish a major

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part of the Commonwealth’s case theory; King and Haskins
murdered Giles because he implicated King in the Thomas-Childs
murder. Lindsey’s informant status was material and [Appellees]
were prejudiced by being unable to impeach Lindsey’s credibility
when Lindsey testified that he “ain’t really know how testifying at
the King/Haskins trial was going to affect” his open federal case.
In failing to disclose Lindsey’s involvement with law enforcement
as an informant, the Commonwealth committed a second Brady
violation.
[fn3]During the Wilcox hearing, it was a Philadelphia Police
Officer John Coyne who testified credibly that “he did not
disclose in the affidavit for the search warrant that Lindsey
was a C.I. . . . because he was seeking to protect Lindsey’s
identity both for reasons of safety and to ensure Lindsey’s
continue[d] assistance with other investigations.” U.S. v.
Hassan Wilcox, NO. 06-0445, [2007 WL 2461820,] page
15 (E.D.Pa. Aug. 28, 2007).

Therefore, the Commonwealth engaged in prosecutorial
overreaching when it had in its possession exculpatory evidence
in the form of the Alston letter, which it knew was significant but
instead deliberately chose not to turn it over to [Appellees and]
later arguing [that] Alston’s testimony [where he testified] that
another person killed Giles was [a] recent fabrication when it
should have known that was not the case, exhibiting a conscious
disregard to King’s or Haskins’ constitutional rights to a fair trial.
The Commonwealth again engaged in prosecutorial overreaching
by failing to disclose that Lindsey was a confidential informant for
the Philadelphia Police Department while using his testimony to
establish motive in the case against King and Haskins, further
eroding their chances at a fair trial.

Due to the passage of time and fading memories and possible
unavailability of witnesses who could have been explored at the
time of this trial, [Appellees] are severely limited in their ability to
mount a defense, despite the assertion of the Commonwealth that
a new trial is a fair remedy.

Trial Ct. Op., 11/12/20, at 8-11 (record citations omitted and some formatting

altered).

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The Commonwealth has acknowledged a violation of the rule in Brady

for failing to provide Appellees the Alston letter. However, it argues that

dismissal of the charges was not warranted because the prosecutor’s conduct

constituted an error rather than overreaching. Commonwealth’s Brief at 21-

27 (unpaginated). Additionally, the Commonwealth also contends that the

trial court erred when it concluded that the Commonwealth overreached in not

disclosing that Craig Lindsey was a police informant. The Commonwealth

asserts that although Johnson provides that “non-intentional prosecutorial

conduct may constitute a bar to retrial,” barring retrial is an extreme remedy

for rare situations where the prosecutor’s actions are “so egregious that they

constitute overreaching by seeking conviction above justice[.]” Id. at 21

(unpaginated). The Commonwealth notes that although “prosecutorial errors

are an ‘inevitable part of the trial process,’ prosecutorial overreaching is not.”

Id. at 25 (unpaginated) (quoting Johnson, 231 A.3d at 824) (additional

citation omitted)). “[O]verreaching signals that the judicial process has

fundamentally broken down because it reflects that the prosecutor, as

representative of an impartial sovereign, is seeking conviction at the expense

of justice.” Id. (quoting Johnson, 231 A.3d at 822). The Commonwealth

emphasizes that while the prosecutor in Johnson overreached, the prosecutor

in the instant cases did not. Id.

Briefly, we summarize the facts and holding in Johnson. In that case,

our Supreme Court considered whether retrial is barred based on the

constitutional protections against double jeopardy “where the Commonwealth

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obtains a conviction based on false evidence and its misconduct, while not

undertaken with the intent to deny the defendant a fair trial, nevertheless

stems from prosecutorial errors that rise substantially above ordinary

negligence.” Johnson 231 A.3d at 810.

The Johnson case involved the murder of Walter Smith outside a

Philadelphia bar. During the investigation of the crime scene, the police

recovered a red baseball cap near Smith’s body, and the police assigned this

cap a property receipt number. Id. at 810. After the murder, Smith’s friend

Debbie Williams provided a statement to the police. Id. at 810-11. Williams

informed the police that she had been with Smith on the night of the murder,

and she described what she had seen. Id. at 811. Additionally, Williams told

the investigators that Smith was wearing a black cap at the time of the

shooting that Williams had herself collected from the crime scene. This black

cap had a bullet hole in it, and Williams gave the black cap to the police. The

police assigned the black cap a property receipt number separate from the

receipt number assigned to the red cap. Forensic testing of the black cap

revealed the presence of Smith’s blood. Id.

Years later, evidence linking Johnson to the murder was uncovered, and

the police collected a sample of Johnson’s DNA. Id. Subsequent testing of

the red cap revealed the presence of Johnson’s DNA. Id. At trial, the

prosecuting attorney proceeded under the theory that one cap, the red one,

had both Smith’s blood and Johnson’s sweat on it. Id. at 811-13. The

Commonwealth’s forensics expert also erroneously indicated that the blood

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and DNA evidence were found on the same cap. Id. at 812. Further, an

investigating officer testified that he saw blood under the brim of the red cap

when he recovered it. Id. A jury convicted Johnson and sentenced him to

death. Id. at 813.

Following the review of a forensics lab report, which revealed that a

second cap had been analyzed, the Commonwealth agreed that Johnson was

entitled to a new trial, and Johnson moved to dismiss the charges. Id. Our

Supreme Court held that retrial was barred and outlined two significant errors

made by the prosecuting attorney:

[F]irst, there was a notable discrepancy between the property
receipt numbers for the two caps. The prosecutor was aware this
meant that the associated results reflecting the presence of
[Smith’s] blood and [Johnson’s] DNA might have related to
different pieces of physical evidence. Yet, in the face of this
information, he never sought to verify his working hypothesis that
the receipt numbers pertained the same baseball cap. He did not
even notice this error at the preliminary hearing when he had in
his possession property receipt number 2425291, which clearly
stated that it was associated with a black baseball cap. Second,
in preparation for a capital case, the prosecutor did not obtain a
criminalistics report which would have summarized the evidence
connected with the matter and revealed that there were two
different caps involved.

Id. at 826-27. The Supreme Court determined that the Commonwealth’s

“almost unimaginable mistakes,” though unintentional, were “strongly

suggestive of a reckless disregard for consequences and for the very real

possibility of harm stemming from the lack of thoroughness in preparing for a

first-degree murder trial.” Id. at 826-27 (internal quotation marks omitted).

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The Johnson Court concluded that the Commonwealth had not acted

with the intent to deprive Johnson of a fair trial. However, it further explained

and expanded prior caselaw defining overreaching:

Under Article I, Section 10 of the Pennsylvania Constitution,[6]
prosecutorial overreaching sufficient to invoke double jeopardy
protections includes misconduct which not only deprives the
defendant of his right to a fair trial, but is undertaken recklessly,
that is, with a conscious disregard for a substantial risk that such
will be the result. This, of course, is in addition to the behavior
described in [Commonwealth v. Smith, 615 A.2d 321 (Pa.
1992)], relating to tactics specifically designed to provoke a
mistrial or deny the defendant a fair trial. In reaching our present
holding, we do not suggest that all situations involving serious
prosecutorial error implicate double jeopardy under the state
Charter. To the contrary, we bear in mind the countervailing
societal interests mentioned above regarding the need for
effective law enforcement, see generally State v. Michael J.,
274 Conn. 321, 875 A.2d 510, 534 (2005) (referring to the need
for an “optimal balance between the defendant’s double jeopardy
rights and society’s interest in enforcing its criminal laws”), and
highlight again that, in accordance with long-established double-
jeopardy precepts, retrial is only precluded where there is
prosecutorial overreaching – which, in turn, implies some sort of
conscious act or omission. Notably, however, this Court has
explained, albeit in a different context, that reckless conduct
____________________________________________

6Article 1, Section 10 of the Pennsylvania Constitution provides in relevant
part, as follows:

Except as hereinafter provided no person shall, for any indictable
offense, be proceeded against criminally by information, except in
cases arising in the land or naval forces, or in the militia, when in
actual service, in time of war or public danger, or by leave of the
court for oppression or misdemeanor in office. Each of the several
courts of common pleas may, with the approval of the Supreme
Court, provide for the initiation of criminal proceedings therein by
information filed in the manner provided by law. No person shall,
for the same offense, be twice put in jeopardy of life or limb . . . .

Pa. Const. Art. 1, § 10.

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subsumes conscious behavior. See Tayar v. Camelback Ski
Corp., Inc., [47 A.3d 1190, 1200 (Pa. 2012)] (indicating that
recklessness, as distinguished from negligence, “requires
conscious action or inaction which creates a substantial risk of
harm to others”).

Johnson, 231 A.3d at 826. Bearing these principles in mind, we must now

determine whether the trial court erred in barring retrial based on double

jeopardy.

Disclosure of the Alston Letter

As discussed above, the Commonwealth failed to provide the Alston

letter to Appellees before trial. After review, we agree that the Commonwealth

committed a serious Brady violation. The Third Circuit addressed this issue

as follows:

[G]iven that the suppressed letter contained direct evidence going
to a central issue in this case, the jury’s lack of access to it causes
us to question whether the verdict is worthy of confidence. The
Commonwealth presented two disinterested witnesses who
implicated Haskins in the murder. Portions of their trial testimony
were inconsistent with their earlier statements to the police and
with aspects of either their own or each other’s testimony. Even
though the two witnesses were disinterested and, as Haskins
concedes, neither had a motive to lie, a compelling alternate
version of events, presented with corroborating evidence, might
have cast doubt on their accounts. Alston’s testimony provided
such an alternative. Alston testified that Cannon shot Giles and
neither Haskins nor King was present.

Alston’s credibility was vigorously attacked on multiple fronts. He
was confronted with his five pending trials, his prior juvenile
adjudication for possession of stolen property, and his admitted
loyalty to and bias in favor of Haskins. Moreover, in response to
Alston’s testimony that Cannon and not King shot Giles, the
prosecutor asserted through his questioning that Alston fingered
Cannon for Giles’s murder in retaliation for Cannon having
implicated Alston in a separate murder. Put plainly, the

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prosecution sought to suggest to the jury that Alston’s testimony
blaming Cannon was a recent fabrication made in retaliation for
Cannon’s then recent disclosure of Alston’s role in another murder.

The Brady material here would have corroborated Alston’s
testimony, undercutting that challenge. The letter identifying
Cannon as Giles’s killer was written before Cannon’s statements
to police implicating Alston in a murder. Thus, even before a
retaliatory motive may have existed, Alston said Cannon shot
Giles. Had the letter been disclosed, the prosecutor would have
been unable to pursue the recent fabrication challenge, and if he
attempted to do so, Haskins could have easily refuted that
accusation by pointing to his letter to someone with whom he
shared a close relationship, written before the alleged motive to
retaliate against Cannon arose. Given the importance of Alston’s
credibility and the inconsistencies in the testimony of the
prosecution’s witnesses, we believe that there is no room for fair-
minded disagreement that the letter calls into question whether
the verdict returned is worthy of confidence. As a result, the
Superior Court unreasonably applied Brady and its progeny when
it held that the evidence was not material. Haskins is therefore
entitled to habeas relief.

For the foregoing reasons, we will reverse the District Court’s
order denying Haskins’s habeas petition, and the Commonwealth
is directed to retry Haskins within 120 days or release him.

Haskins III, 755 Fed.Appx. at 189-90 (citations omitted and some formatting

altered). However, although the Commonwealth committed a Brady

violation, we conclude that the trial court erred in granting Appellees’ motion

to bar retrial.

Pursuant to Johnson, the trial court must consider the countervailing

societal interests regarding the need for effective law enforcement concerning

the balance between a double jeopardy rights and society’s interest in

enforcing its criminal laws. See Johnson, 231 A.3d at 826. We note that

retrial is only precluded where there is prosecutorial overreaching, which

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implies some sort of conscious act or omission. See id. Moreover, the

constitutional double jeopardy prohibition:

is not primarily intended to penalize prosecutorial error, but to
protect citizens from the embarrassment, expense and ordeal of
a second trial for the same offense and from compelling them to
live in a continuing state of anxiety and insecurity, as well as
enhancing the possibility that even though innocent they may be
found guilty.

Id. (citation omitted and formatting altered).

With respect to the Alston letter itself, the record reflects that the

prosecutor testified that he received the undated Alston letter, which had no

postmark or envelope attached, after he began working on Appellees’ case.

N.T., 8/19/20, at 31. ADA Bologna testified that he thought that the Alston

letter was written after Alston’s arrest and was, therefore, only cumulative of

Alston’s statements to police. Id. at 31-35. However, ADA Bologna’s error

led him to conclude incorrectly that Alston’s subsequent exculpatory

statement was a recent fabrication. Id. at 31-38. The prosecutor later

learned during PCRA proceedings that the Alston letter was written before

Alston’s arrest. Id. at 32-35.

The trial court found that the prosecutor immediately recognized the

significance of the Alston letter and consciously decided not to turn it over to

Appellees prior to trial. Trial Ct. Op., 11/12/20, at 6, 8-9. The record does

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not support this conclusion.7 See N.T., 8/19/20, at 129, 131-132, 148-149

(revealing that ADA Bologna testified that he did not immediately recognize

the significance of the Alston letter or understand when the Alston letter was

written, and the Commonwealth was not aware of the date the letter was

written until it cross-referenced Appellees’ cases with other cases years after

the trial). Indeed, the record is devoid of any evidence that ADA Bologna was

aware or should have been aware of the significance of the Alston letter until

the PCRA proceedings. Rather, ADA Bologna testified that he believed that

the Alston letter had been written after Alston was arrested. Id. at 44-47.

ADA Bologna then placed the letter in a file and was not reminded of its

existence until years after trial. Id. at 47-48. On its face, the undated Alston

letter did not present the “red flag” that the separate property receipts for the

two caps in Johnson did. We conclude that the prosecutor’s mistake

concerning the Alston letter, although significant, does not constitute

overreaching that would require the imposition of the double jeopardy bar

precluding the retrial of this case. See id. 44-48, 54-55, 97-106 (detailing

ADA Bologna’s description of his review of the Alston letter, his erroneous

belief as to when it was written, his misunderstanding of its significance, and

his admission of his mistake).

____________________________________________

7We note that the Attorney General of Pennsylvania in an amicus curiae brief
emphasizes that the trial court’s conclusion that the prosecutor made a
“deliberate decision” not to turn over the Alston letter to Appellees is not
supported by the record. Amicus Brief at 22 (citing N.T. 8/19/20 at 44).

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The prosecutor’s error in the case at bar does not rise to the level of the

“almost unimaginable” error in Johnson where the Commonwealth’s actions

led it to conjure a cap containing forensic evidence of the victim’s blood and

the accused’s DNA and indelibly linking the accused to the murder. Johnson,

231 A.3d at 816, 826-27. As noted, in Johnson, the red cap was a crucial

part of the Commonwealth’s case, yet there was no single cap bearing both

Smith’s blood and Johnson’s DNA. In Johnson, the Commonwealth’s failure

to conduct even a cursory review of its evidence led to a non-existent piece

of evidence to establish Johnson’s guilt. This recklessness on the part of the

Commonwealth in Johnson represented an instance of seeking a conviction

at the expense of justice, and it rose to the level of overreaching. Id. at 824,

827.

In the instant case, the prosecutor violated Brady by failing to turn over

the Alston letter, and we reiterate that the prosecutor’s intent and “good faith”

are irrelevant concerning Brady material. Brady, 373 U.S. at 87. However,

for the reasons discussed above, we cannot conclude that the prosecution

engaged in overreaching or attempted to subvert justice. Moreover, society

has a compelling interest in bringing the guilty to justice, and under the facts

and circumstances presented here, we cannot conclude that retrial would

increase the possibility that an innocent person would be found guilty. Further

distinguishing the instant case from Johnson is the evidence presented at

trial concerning Appellees’ guilt including motive, independent and

disinterested eyewitnesses, identification of Appellees as the perpetrators, and

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factual evidence contradicting Alston’s version of events. Trial Ct. Op.,

11/12/20, at 1-3. For these reasons, the Commonwealth’s Brady violation

merits relief to Appellees in the form of a new trial, but not the application of

the double jeopardy bar precluding the retrial of this case. See Byrd, 209

A.3d at 353. Accordingly, we conclude that the trial court erred in barring

retrial based on the Brady violation relative to the Alston letter.

Disclosure of Lindsey’s Identity

Next, we must address the trial court’s finding that the Commonwealth

committed a second Brady violation concerning the Commonwealth’s alleged

failure to identify Lindsey as an informant for federal law enforcement. The

record revels that ADA Bologna testified that prior to trial, he obtained all

available discovery relative to Lindsey, this included reaching out to the

Assistant U.S. Attorney who was prosecuting Lindsey in a federal matter and

Lindsey’s own defense attorney. N.T. 8/19/20 at 66. ADA Bologna specifically

stated that he discovered no information revealing that Lindsey was a federal

informant. Id. at 76. ADA Bologna testified: “[Lindsey] was a person who

was arrested on a local drug case, was in a county facility, and reached out to

the District Attorney’s Office with information about an open homicide. That’s

what I believed Mr. Lindsey to be, a person who had information about a

homicide.” Id. ADA Bologna testified that he specifically asked the Assistant

U.S. Attorney if Lindsey was a cooperating witness and was not informed of

any relationship between Lindsey and federal authorities. Id. at 107-112.

Moreover, ADA Bologna found no evidence of a cooperation agreement. Id.

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Additionally, although King cited Wilcox in his motion to dismiss8 to support

the proposition that Lindsey was a known informant, there is no indication

that Lindsey’s status as an informant was known at the time of trial in

Appellees’ case. Id.; see also Wilcox, 2007 WL 2461820.

Because Lindsey’s identity as an informant was unknown and kept from

the Commonwealth, we cannot conclude that the Commonwealth willfully or

inadvertently suppressed evidence of Lindsey’s identity in violation of Brady.

See Roney, 79 A.3d at 607. Moreover, because the Commonwealth

attempted to obtain information relative to Lindsey’s cooperation with the

federal government, but Lindsey’s status was withheld from the

Commonwealth, we further conclude that there was no constructive

knowledge. In other words, we cannot attribute cross-jurisdiction constructive

knowledge of Lindsey’s activities as a federal informant when, despite

requesting the information, the U.S. Attorney’s Office did not or could not

disclose the information to the Commonwealth prior to trial. See U.S. v.

Risha, 445 F.3d 298 (3d Cir. 2006) (discussing imputing cross-jurisdiction

constructive knowledge).9 In Risha, the Third Circuit noted as follows:

It appears that in addressing the issue of cross-jurisdiction
constructive knowledge, most courts of appeals have looked to
the same questions that we have. Those questions include: (1)
whether the party with knowledge of the information is acting on
____________________________________________

8 King’s Mot. to Dismiss, 11/19/19.

9 Although federal circuit court decisions are not binding, they may be
considered for their persuasive value by the courts of this Commonwealth.
Commonwealth v. Little, 246 A.3d 312, 328 n.18 (Pa. Super. 2021).

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the government’s “behalf” or is under its “control”; (2) the extent
to which state and federal governments are part of a “team,” are
participating in a “joint investigation” or are sharing resources;
and (3) whether the entity charged with constructive possession
has “ready access” to the evidence.

Risha, 445 F.3d at 304.

Considering the decision in Risha for its persuasive value, we

nevertheless conclude that there is no evidence supporting cross-jurisdiction

constructive knowledge in this case. As discussed above, there is no evidence

that the Commonwealth knew of Lindsey’s status as an informant for the

federal government. There is no indication that the Commonwealth and

federal authorities were working jointly or sharing resources in this case, and

the Commonwealth did not have access to, or was denied access to, the

information concerning Lindsey’s identity. See Risha, 445 F.3d at 304

After review, we are constrained to conclude that the trial court erred in

its conclusion that the Commonwealth committed a Brady violation related to

disclosing Lindsey’s role as an informant. See Roney, 79 A.3d at 607.

Moreover, because we conclude that there was no Brady violation in this

regard, we further conclude that the trial court erred in barring the retrial of

this case.

Conclusion

Although we agree that the Commonwealth committed a serious Brady

violation when it failed to turn over the Alston letter to Appellees, we conclude

that the trial court erred in barring retrial. Moreover, we conclude that there

was no Brady violation regarding the non-disclosure of Lindsey’s identity as

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an informant for federal law enforcement authorities, and therefore the trial

court erred in barring retrial on this basis. Accordingly, we reverse the order

barring retrial and remand this matter for a new trial for Appellees consistent

with this opinion.

Order reversed. Case remanded for a new trial. Jurisdiction

relinquished.

Judgment Entered.

Joseph D. Seletyn, Esq.
Prothonotary

Date: 12/14/2021

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